Before the Kafka Law of Military Commissions
Fri Apr 11, 2008 at 03:01:27 PM PDT
By Jamil Dakwar, Director of the ACLU's Human Rights Program. Jamil is in Guantánamo Bay this week to observe the Military Commissions hearings of three detainees.
Today, another hearing ended in turmoil when a 47-year-old Sudanese man, Ibrahim al-Qosi, refused representation and declared he would boycott the military commission, before which he is charged with conspiracy and providing material support to terrorism. Al-Qosi told the judge, Air Force Col. Nancy Paul, that he has been waiting for this day for four years, that he does not recognize the lawfulness of the military commission, and that he "leaves the field for you to play as you wish."
Today, the fragile and flawed system of military commissions produced a new episode in its Kafkaesque system of "justice" series. As in the famous Franz Kafka piece "Before the Law," Al-Qosi has waited "to gain entry into the law" only to discover that this unjust system was created for him (and the others declared "unlawful alien enemy combatants" by the Bush administration). In the Kafka story, the man who waits at the door until he is about to die asks the doorkeeper why, even though everyone seeks the law, no one else has come in all the years. To this question the doorkeeper replies: "No one else can gain entry, since this entrance was assigned only to you. I’m going now to close it."
Al-Qosi is one of the few Guantánamo detainees who were charged under the first system of military commissions, which was held unconstitutional and in violation of international law by the Supreme Court in June 2006. At those hearings, Al-Qosi agreed to be represented by a military lawyer, Air Force Lt. Col. Sharon Shaffer. Unfortunately, many events including a new charge of "providing material support to terrorism," have significantly undermined al-Qosi’s trust in the system. In fact, in November 2004, through his civilian lawyer, Paul Reichler, al-Qosi, who is married and has two daughters, filed a habeas corpus petition in the D.C. District Court in which he claimed he was beaten, humiliated, and repeatedly abused in while in U.S. custody in Afghanistan and at Guantánamo.
His newly appointed lawyer, Navy Reserve Cmdr. Suzanne Lachelier, protested about her lack of access to al-Qosi and said that the first time she was able to meet with him was at the military commission hearing itself. Her experience is common among Guantánamo defense lawyers, both military and civilian, who constantly face tremendous difficulty when attempting to freely communicate with their clients, a basic requirement for effective legal advice and representation. The defense counsel asked the judge to help her gain permission to meet with al-Qosi face-to-face, rather than through messages delivered via Guantánamo guards. This basic, constitutionally-protected request was denied. Cmdr. Lachelier was also forced to represent al-Qosi despite his clear statement that he does not wish to be represented by military, civilian, or even volunteer counsel. The military judge was more concerned with moving the process forward and warning al-Qosi of his right to appointed counsel than working to fulfill this right.
In a prepared handwritten statement, al-Qosi said that his only war crime was that he was from a third world country, Sudan. Al-Qosi stressed that the Guantánamo detainees who had European citizenship had been released as a result of a political and diplomatic pressure by their own governments. In fact, just last month the U.N. Committee on the Elimination of Racial Discrimination found that this system of military commissions was discriminatory, in that it denied non-citizens equal standing and access to U.S. courts and violated the rule that counterterrorism measures should not discriminate (PDF) in purpose or effect on grounds of race, color, descent, or national or ethnic origin.
No one knows if al-Qosi will ever appear again before this military commission, but what we witnessed today is becoming a trend in which detainees are challenging the legitimacy of the forum and refusing to take part in the proceedings. Cmdr. Lachelier did not hide her discomfort and concern about the situation she has been forced into. She said she was very close to making a decision similar to that made by her client, but for now she will try her best to reconcile her ethical duties as a lawyer representing Al-Qosi with her respect for the distorted rules of "justice" created under the Military Commissions Act.
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